Publishing Contract

9 Major Deal Points In Publishing Contracts


You finished your book. You found an agent. You have a publisher who wants to buy the rights to publish your book. Congratulations! Now what?

It is time to negotiate your publishing contract.

“But isn’t that my agent’s job?” you say.

Well, yes. It is. However, you sign the contract. This means you are legally obligated to the terms. This also means you should not enter into the contract lightly. If you have a basic understanding of the terms when the contract arrives, you know what questions to ask, what modifications to request, and what terms will protect your interests. Failing to address any issues with the terms of a publishing contract before signing, means the contract can, and often does, fit like handcuffs instead of nice Italian leather gloves.

Most writers who experience publishing for the first time (and more experienced authors too) feel compelled to sign the agreement the publisher offers for fear the deal will fall apart and put an end to their publishing dreams. After all, it took a long time to write the book, find the agent, and hook a publisher. But a publishing contract, like any contract, is meant to be negotiated. While a debut author may have less leverage during negotiations than a well-established author, that does not mean the publishers are averse to negotiating the contract terms. Publishers want to buy the book, so there is plenty of leverage to adjust the contract terms if necessary.

Phases of negotiation

A typical publishing contract is negotiated in two phases.

  1. The major deal points are agreed upon before the contract is even drafted. These are the fundamentals of every publishing contract and should be negotiated. Once these deal points have been solidified, there should be a deal memo from the publisher listing the points discussed.
  2. The contract is created, reviewed, negotiated again, and signed. This phase includes the fundamentals of the contract from phase one and a few boilerplate items that usually are not negotiated but can be depending on the needs of the publisher and author.

Top Deal Points

Here is a general overview of the top 9 deal points every writer should understand before signing a publishing contract.

1. Grant of rights

This deal point is the nucleus of the publishing contract because it outlines what rights the publisher has to reprint your book.

a) Copyright

The author initially owns the copyright to their book, which is the right to reproduce the work themselves or sell it to publishers, studios, theaters, or anyone else. The author under the grant of rights clause is granting the publisher certain rights to reproduce the work in certain formats (like hardcover, paper, digital, audio) and in certain territories. Basically this provision defines what rights under the copyright the author transfers to the publisher to commercially exploit in exchange for payment.

It is important to understand that the rights to the author’s copyright need not be transferred in a single lump. Rights to exploit an author’s copyright can be sold separately to different publishers. They can be exclusive or non-exclusive, although typically the grant of rights clause is exclusive.  So only transfer rights that the publisher will actually use.

The duration or term of the grant of rights, if not specified, is typically for the life of the copyright, which is the life of the author plus 70 years.

b) Territory

The publisher will ask for the right to publish your book in certain territories. There are generally three major territories of interest.

      1. North American Rights in English
        • Usually, this includes America, Canada, Philippines, and US Army Bases
      2. World Rights in English
      3. World Rights in all other languages

A writer should be clear as to what territories are included in the contract and only grant rights to a publisher that it is in the business of exploiting. For example, if the publisher only publishes books in English in the US, then why grant them world rights too. World rights could be sold to a publisher with that expertise. Or world rights could be sold but for a limited time period (like two years). If the publisher fails to sell the book in that territory within the time frame, the rights revert back to the author who is free to sell them again.

c) Format

The contract will specify the formats the publisher can use to publish the book.

      1. Print
        • Hardcover
      2. Softcover like trade paperbacks
        • What you find in bookstores
      3. Mass-market paperbacks
        • These tend to be a different quality than trade paperbacks. You’ll find mass-market paperbacks in places like grocery stores, drugstores, airports, department stores, and other non-bookstores that sell books.
      4. Electronic
        • The right to ebooks will usually be treated like another book format.
        •  If ebook rights are granted, make sure the publisher can only exploit the book in its entirety and without changes.

There should be a specific royalty for each format. Look for catch-all phrases that might attempt to grab a larger scope of rights than you intended to grant. For example, “including but not limited to” language.

See my previous post on the grant of rights clause for more tips on negotiating these terms.

2. Advance and Payout

Most publishers are willing to pay authors some portion of the royalties before publication. Advances tend to be scheduled in installments. These are called “payouts” and should be listed in the contract. Here are three typical payouts.

    1.  Small advances
      • ½ at signing, ½ at publication
    2. Medium advances
      • ⅓ at signing, ⅓ at delivery and acceptance of the manuscript, ⅓ at publication
    3. Large advances
      • ¼ at signing, ¼ at delivery and acceptance of the manuscript, ¼ at publication (hardcover), ¼ publication (paperback)

It is important to remember that an author does not receive royalties until the advance has been recouped. The advance is an advance against royalties.

The biggest trade-off is the advance versus the territory. If the advance is on the smaller side then the author may want to keep foreign rights. That way the author can sell those rights and have more money upfront instead of waiting for the publisher to exploit those rights and deliver royalties on their own timetable.

3. Royalties

The contract should list a schedule of royalties paid as a percentage of the sale of each book for all formats. Typically there are four major formats: hardcover, trade paperback, mass-market paperback, and ebook.

You will want to be clear about how the publisher calculates the royalties. There are a variety of formulas. A percentage of the retail price (or list price) is much different (and more money to the author) than a percentage of the net price (which takes into consideration any discounts given to induce a bookstore to buy the book). The basic calculation looks like this: Retail Price x Royalty Percentage x Books Sold = Author Royalty Payment.

Examples of royalty percentages might be:

    1. Hardcover
      • 10% of the retail price on first 5,000 copies, 12½% on the next 5000 copies, then 15% thereafter.
    2. Paperback
      • 6-7½% of the retail price. This rate can escalate (like for hardcover) based on the number of books sold. That mark can be 25,000 books or even 150,000, then 8%.
    3. eBooks
      • 25% of the retail price or net price (which in my opinion is low if you consider the publisher doesn’t have the standard printing and shipping costs to pay).

4. Subsidiary Rights

These rights are less important than the primary right to publish the book. The publisher can license these rights to a third-party for a license fee, or exploit them itself. Sometimes the publisher will forgo subsidiary rights, thinking the author and agent can do better at marketing them.

    1. Dramatic or Performance
      • This covers the right to produce the work in formats like film, television, plays, and cable. Generally, an agent will reserve these rights to be sold separately to a studio or network. A publisher will still benefit when the movie enhances book sales.  See my previous post on how books are made into films for more information.
    2. Audio
      • This covers audiobooks.  Frequently these rights are licensed to multiple audio producers.  See this post on audio rights for more information.
    3. Merchandising
      • These may not be important but it is good to be clear who controls the right to make things like t-shirts, toys, etc.  See my previous post on Merchandising Rights for more information.
    4. Reprints/Mass-market paperbacks
      • Some publishers are not in the business of mass-market paperbacks and will license the rights to a trade publisher who specializes in them.
    5. First Serialization
      • This would be pre-publications like excerpts in newspapers, periodicals, or on-line publications to help generate interest in the book before it reaches the shelves.
    6. Delivery Date and Acceptance

 

6. Editorial Control

One of many worrisome areas for writers negotiating publishing contracts is who has the final word when editing a manuscript for publication. Publishing agreements define the right to creative control over the manuscript in the editing clause. Typically, that right goes to the publisher. But sometimes writers can negotiate contract language that will achieve a partnership between the interests of the publisher and the writer.

If you are faced with an editing clause that gives all the power to the publisher over the style and content of the manuscript, ask for changes. Many publishers are willing to negotiate. It is up to you to decide how restrictive or flexible you are willing to be with creative control. While cooperation and mutual consent should be the goal standard (because competent editors will improve a manuscript), at the very least, you should demand to be consulted about all changes in the manuscript, whether for style or substance, and that the content not be inherently changed without your consent.

See my previous post on Editorial Control for more information on negotiating this clause.

 

7. Options and Right-of-first-refusal

If the contract contains an option clause, then the publisher is requesting the right to publish the author’s next book under the same terms as the first. If the contract contains a right-of-first-refusal clause, then the terms covering the rights to the second book can be negotiated.

Keep these provisions clean and simple. Have a specific date for the proposal or next book to be submitted. Have a specific time for the publisher to review it (e.g. 60 days), and then a specific time to negotiate a deal (e.g. 30 days). If those deadlines aren’t met, then the parties go their own way. The shorter the response times, the better for the author. Try to avoid being bound by extraneous language that might allow the publisher to match any offer after they have declined, or extend their option or right-of-first-refusal past an unreasonable time limit. Such language only restricts the author’s ability to seek the best market and publisher for the book.

A few other points to remember about options:

    • Make sure the option can be exercised only if the publisher is not in breach of the publishing contract.  For example, if the publisher owes royalties on the first book and has not paid, you do not want to be obligated to them for the second book.
    • Decide if you want the option clause to be exercisable even if the first book has gone out of print.

8. Consultation and Approvals

An author often wants the right to consult on the title, jacket copy, and cover. New authors might be able to get consultation rights. Famous authors can sometimes get approval rights.

    • Consultation = the publisher must get the author’s input before publication
    • Approval = the publisher must get the author’s approval before publication.

9. Warranty and Indemnity Clauses

Every book contract contains warranty and indemnity clauses. The demands made in these provisions tend to be seen by authors as grossly unfair and unreasonable. And for good reason. Warranty and indemnity clauses have the potential to deplete an author’s entire net worth.

    • Warranty Clauses

When a writer decides to publish, a publisher will require certain warranties about the manuscript – promises like the manuscript is not plagiarized, has not been previously published, is not in the public domain, is not defamatory, and does not infringe anyone’s copyrights, trademarks, or right of privacy/publicity. From a publisher’s perspective, the author is in a position to know if what is promised about the book is true. Such representations and warranties seem appropriate and reasonable. Authors should stand by their work and be held accountable if any of the warranties are false.

But often these warranties become onerous by forcing authors to warrant the manuscript does not violate the laws of infringement, defamation, invasion of privacy, or any other rights of any third-party in any state or anywhere in the world. Unless you have a handy crystal ball, who can truly warrant that?

    • Indemnity Clauses

Indemnification requires a writer to compensate the publisher for any losses should someone sue the publisher because a warranty the author made was untrue. It puts a sharp stinger into the warranties by directly affecting an author’s bank account. If a claim is asserted against the author’s work, the author pays the litigation fees, court costs, damage awards, and settlement payments.

In addition to the hefty price tag of unlimited financial liability, indemnity clauses are far-reaching in other respects. The provisions often:

      1. require indemnity whether or not the lawsuit brought against an author’s work is well-founded or frivolous;
      2. give the publisher the right to settle a claim without the author’s consent; and
      3. allow the publisher to withhold author payments to offset potential damages if a claim has been asserted.

For more information about how to negotiate warranty and indemnity clauses see my previous post.

A publishing contract will have a huge impact on your writing career and your wallet. So why not make the best of it. Do your homework and be informed so you can negotiate favorable terms in your publishing contract before signing. If you do not, you may be shackled to a contract that is damaging to both your artistic and financial future.

 


Photo Credit:  Derek Bridges | Visualhunt.com | CC BY

Legal Disclaimer: This information is provided for educational purposes only. Use the resources above to find and consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation. See the disclaimer link in the footer of our website for more information.

Publishing Contract
Negotiating Editorial Control in Publishing Contracts
Agent Contracts
How To Avoid Common Agent Contract Missteps (Part I)
Publishing Contract
How to Avoid Unfair Delivery and Acceptance Clauses in a Publishing Contract